What do you mean by “liability” ? Distinguish between Civil and Criminal Liability and Penal and Remedial Liability.


Q. 17. (a) What do you mean by “liability” ? Distinguish between Civil and Criminal Liability and Penal and Remedial Liability.

Ans. Meaning and definition of `liability’.—According to Austin, liability consists of those things which a wrongdoer must do or suffer. It is the ultimatum of law and has its source in the supreme will of the state. Liability arises from a breach of duty which may be in the form of an act or omission. Liability has occupied a place of pride in the hierarchy of legal concepts. It has been used to include three things :

1. To express the position of a person who undertakes to do some-thing.

2. To express the condition of a person who has failed in the performance of duty; and

3. To express the condition of a peson who has not failed to perform his contract but has caused damage to the other person.

“Liability or responsibility, says Salmond : “is the bond of neces-sity that exists between the wrong-doer and the remedy of the wrong.”

Markby says : “The word liability is used to describe the conditions of a person who has a duty to perform.” Thus, liability is the plight, condition, or the state of the person who has acted, for borne or omitted contrary to law. It may also be described as the state of the person who has violated a right or acted contrary to a duty.

Kinds of liability.—Liability is either “civil” or “criminal”, either “remedial” or “penal”. Whilst criminal liability is always penal, civil liability may be either remedial or penal.

Civil and Criminal Liability—Distinction.—These may be distinguished in three respects, namely—

(i) Procedure.—Proceedings of civil liability take place in one set of courts and criminal proceedings in a different set: civil liability requires enforcement of some right, criminal liability, results in punishment for some crime.

(ii) Nature of redress or remedy.—In civil proceedings the remedy is in the form of damages, the redress for criminal liability is in the form of punishment.

(iii) The measures of liability.—As regards the measure of liability, criminal liability is measured by four elements, namely— (1 ) motive, (2) inten-tion, (3) character of the offender, and (4) the magnitude of the offence. In civil liability, motive and character of the wrongdoer are as a rule irrelevant.

Remedial and Penal Liability—Distinction.–The remedial liability is based on the fundamental principles of “ubi jus ibi remedium”, that is ‘for every wrong there is a remedy. Wherever law confers a right it also provides a remedy for the infringement of that right.

When the remedy is punishment the liability for which it is given, becomes a penal liability.

Remedial liability is civil liability, but the converse is not true. Civil liability is sometimes penal also. All criminal liability is penal liability.